On Saturday at a White House Rose Garden event, President Donald Trump will announce his nominee to replace Associate Justice Ruth Bader Ginsburg on the U.S. Supreme Court.
The announcement will come a week and a day after Ginsburg’s death at age 87 from pancreatic cancer.
Speculation in the first hours after Ginsburg’s death as to whether Trump would fill the seat in the last weeks of his first term or whether it would be held open until after the Nov. 3 general election was quelled when both Trump and Senate Majority Leader Mitch McConnell, R-Kentucky, revealed that the process would happen before the election.
Democrats blasted the GOP for hypocrisy, pointing to President Barack Obama’s nomination of Merritt Garland to fill the seat of Justice Antonin Scalia, who died in February 2016. McConnell refused to hold a hearing for Garland because it was 10 months out from a presidential election.
House Speaker Nancy Pelosi, D-California, has said her party is not without options to try to stop or slow the nomination and that Democrats have “arrows in our quiver” yet to be deployed.
In a New York Times podcast interview released Monday, Pelosi repeated the statement, adding, “Well, I have arrows in my quiver, in the House quiver, and one of my arrows is not to say what the arrows are.”
House Judiciary Chair Jerry Nadler, D-New York, went a bit further than Pelosi, saying that if Trump’s nomination is pushed through, retaliation will come after the election when, assuming Democrats hold on to the House and possibly win both the Senate and the presidency, they put into motion a plan to increase the number of justices on the court.
Senate Minority Leader Chuck Schumer, D-New York, spoke from the Senate floor Monday asking Republicans not to ram a nomination through before the election.
“If a Senate majority over the course of six years steals two Supreme Court seats using completely contradictory rationales, how could we expect to trust the other side again?” he asked. “How can we trust each other if, when push comes to shove, when the stakes are the highest, the other side will double-cross their own standards when it’s politically advantageous?”
Can Democrats do anything about the nomination before a vote in the Senate to confirm Trump’s choice? Here is a look at some of the procedures that are in play during the confirmation process in the Senate.
The filibuster
Some question whether Democrats can block Trump’s Supreme Court nominee through a filibuster.
The answer is no.
Democrats in 2013 voted to get rid of rule that required 60 votes to end a filibuster on executive branch nominations and federal judicial appointments, saying that the GOP was slowing the process of confirming Obama’s judicial nominees. Republicans upped the ante in 2017 when they voted to extend that rule by ending the 60-vote rule on filibusters on Supreme Court nominees. That happened during Justice Neil Gorsuch’s nomination process.
Because the 60-vote rule was eliminated, cloture, which is a call to end debate, can be invoked with only a majority of those senators present. In other words, if all 100 senators are present, it would take 51 votes for the debate to be ended and a vote on the nominee to be moved along.
Get Republicans to vote with the Democrats
Does McConnell have the majority vote needed to confirm Trump’s nominee? It appears today that he does. With the exception of Maine Sen. Susan Collins and Alaska’s Lisa Murkowski, the other 51 GOP senators seem ready to hold the confirmation vote for Trump’s nominee.
“In fairness to the American people, who will either be re-electing the president or selecting a new one, the decision on a lifetime appointment to the Supreme Court should be made by the president who is elected on Nov. 3,” Collins said about the vote.
Murkowski vowed not to vote to confirm a nominee prior to the Nov. 3 election.
Democrats would need four Republican senators to vote with the 47 Democrats to derail the nomination.
If Trump is not reelected in November, can the Senate still confirm his nominee?
The Senate, with the members it has today, can conduct business up until Jan. 3, when the new Congress is seated. However, there is an unusual wrinkle with this particular Senate.
There is a special election in Arizona on Nov. 3 to fill the seat John McCain held until his death in 2018. The winner of that election is to be sworn in by Nov. 30.
Upon McCain’s death, Martha McSally was chosen to fill the vacancy until this November’s election. She is running against Mark Kelly, a Democrat. If Kelly is elected, the balance of power in this Senate would shift to 52 Republicans and 48 Democrats.
But, to answer the question, yes, the Senate could confirm the nominee if Trump loses the election as long as they have at least 51 votes, or if it is a 50-50 tie and Pence casts the tiebreaking vote.
Deny a quorum
Democrats can prevent a quorum from being present, thwarting a rule that requires at least two members of the minority party to be present to transact business.
While this seems like a way to stop the nomination’s progress, Sen. Lindsey Graham, chairman of the Senate Judiciary Committee, can get around that requirement by changing the quorum rule, ignoring the requirement.
Democrats could appeal the change to the Senate’s Parliamentarian, but that decision is subject to a vote in the full Senate that can overturn it.
Launch an impeachment
New York Rep. Alexandria Ocasio-Cortez discussed during a press conference on Sunday whether she felt the House should employ impeachment tactics against the president and Attorney General William Barr. Ocasio-Cortez said she believed that there has been “an enormous amount of law-breaking in the Trump administration,” and that the attorney general is “unfit for office” and has “pursued potentially law-breaking behavior.”
“These are procedures and decisions that are largely up to House Democratic leadership,” she said. “But I believe that also we must consider, again all of the tools available in our disposal and that all of these options should be entertained and on the table.”
An impeachment of any kind could stall the nomination by tying up the Senate with an impeachment hearing. Remember, an impeachment must take priority in the Senate when it is presented.
Pelosi, when pressed on whether she would consider an impeachment, said that the Constitution requires that Congress “use every arrow in our quiver.”
“We have a responsibility,” Pelosi said. “We take an oath to protect and defend the Constitution of the United States. We have a responsibility to meet the needs of the American people.”
Deny unanimous consent
Much of what happens in the Senate happens with the understanding that the business of the body is being conducted in the manner proposed.
That happens under something called unanimous consent. According to the definition from the Senate, “A senator may request unanimous consent on the floor to set aside a specified rule of procedure so as to expedite proceedings. If no Senator objects, the Senate permits the action, but if any one senator objects, the request is rejected.”
Democrats could refuse unanimous consent on any and all matters, slowing the business of the Senate to a virtual halt by forcing senators to debate and vote on the most common of measures.